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EXHIBIT 10.20
ROCKFORD CORPORATION
CONVERTIBLE SUBORDINATED DEBENTURE PURCHASE AGREEMENT
May 1, 1995
To the Purchasers of
Rockford Corporation
Convertible Subordinated Debentures
Identified on Exhibit A Below
Ladies and Gentlemen:
The undersigned Rockford Corporation, an Arizona corporation (the
"Company"), agrees with you as follows:
1. PURCHASE AND SALE OF DEBENTURES.
1.1 Authorization by the Company. The Company has authorized the
issue and sale to you of its 8.5% Convertible Subordinated
Debentures (the "Debentures"), with the terms and rights set
forth in the form of the Debenture attached to this Agreement
as Exhibit B. The Debentures will be in the total principal
amount, and will be divided among you, as shown on Exhibit A.
1.2 Agreement of Purchase and Sale. Subject to the terms and
conditions of this Agreement, and on the basis of the
representations and warranties set forth herein, the Company
will sell to you and you will purchase from the Company, on
the Closing Date, the principal amount of the Debentures set
forth on Exhibit A at a price equal to the principal amount.
The Debentures will be divided among you as set forth on
Exhibit A.
1.3 Closing of Purchase and Sale. The purchase and sale of the
Debentures (the "Closing") will take place at the office of
Xxxxx and Xxxx, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, xx
May 1, 1995 (or on another date if you and the Company agree
in writing) (the "Closing Date"). On the Closing Date, the
Company will deliver to you Debentures against payment of the
purchase price by your certified or cashiers checks payable to
the order of the Company or wire transfer of immediately
available federal funds. The Debentures purchased by you will
be evidenced by appropriate certificates issued to each of
you, in definitive form as set forth in Exhibit B, divided
among you as set forth in Exhibit B, and registered in your
names or the names of your nominee or nominees.
2. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to you as follows:
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2.1 Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of
Arizona. The Company has all requisite corporate power and
authority to own, lease, and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted. On the Closing Date the Company will be duly
qualified or authorized to do business and in good standing in
each jurisdiction where the character of the property owned or
leased or the nature of the business transacted makes such
qualification or authorization necessary. The Company has no
subsidiaries or any direct or indirect interest (by way of
stock ownership or otherwise) in any firm or business except
as disclosed in Schedule 2.1. The Company has furnished you
with certified copies of its Certificate of Incorporation and
By-Laws, as amended to the date hereof.
2.2 Capitalization. The Company's authorized and outstanding
capital stock, and the outstanding securities convertible into
the Company's capital stock, is as set forth in Schedule 2.2.
All of the issued and outstanding shares of the Company's
Common Stock are duly authorized, validly issued, fully paid
and nonassessable. The Company has reserved the number of
shares of its Common Stock shown on Exhibit A for issuance
upon conversion of the Debentures. All outstanding shares of
the Common Stock of the Company were issued in compliance with
all applicable Federal and state securities or "blue sky"
laws. There are in existence or contemplated no options,
warrants, agreements or similar rights granted by the Company
for the issue or sale by it of any securities, other than the
transactions contemplated by this Agreement and the
transactions disclosed in Schedule 2.2.
2.3 Financial Position. The Company's Balance Sheets as at
September 30, 1993 and 1994, and Statements of Income and
Retained Earnings and of changes in Financial Position for its
two fiscal years then ended, as audited by Ernst & Young LLP
and in the form set forth in Schedule 2.3, are true and
correct in all material respects as at such dates and for the
periods then ended.
2.4 Duly Issued. The shares of the Common Stock issuable upon
conversion of the Debentures, upon such conversion, will be
validly issued, fully paid and nonassessable.
2.5 Authorization. The Company has duly authorized, executed and
delivered this Agreement. This Agreement constitutes the valid
and binding agreement of the Company, enforceable in
accordance with its terms except as enforcement may be limited
by bankruptcy, insolvency, moratorium and equitable principles
applicable to creditors generally. The Company has full power
and lawful authority to issue and sell the Debentures on the
terms and conditions set forth in this Agreement and to issue
the Common Stock issuable upon conversion of the Debentures.
2.6 Compliance with Laws. The Company is in compliance with all
laws, regulations and orders applicable to its business and
properties, and has all necessary permits and licenses.
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2.7 Governmental Consents. Neither the execution and delivery of
this Agreement, nor the performance of the terms or
consummation of the transactions contemplated by the Company
under this Agreement, require any consent, approval,
authorization, or other order of any court, regulatory body,
administrative agency, or other governmental body, or any
filings pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), or the securities laws of any state
other than those obtained prior to and effective as of the
Closing Date. Neither the Company nor any agent acting on its
behalf has offered, or will offer, to sell (or has solicited
or will solicit any offer to buy) the Debentures or any shares
of the Common Stock of the Company issuable upon the
conversion of the Debentures so as to require the registration
of any of such securities under the Securities Act other than
as contemplated by Article 4 of this Agreement. Based in part
on your representations which are set forth in Article 3 of
this Agreement, the offer, sale, and issuance of the
Debentures pursuant to this Agreement and the shares of the
Common Stock of the Company to be issued upon conversion of
the Debentures are exempt from the registration requirements
of the Securities Act.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. You represent and warrant
to the Company and to the other purchasers of the Debentures:
3.1 Investment Representation. You are acquiring the Debentures,
together with the shares of the Common Stock issuable upon the
conversion of the Debentures, for your own account and not
with a view to or for sale in connection with any
distribution. You have no present intention of distributing
the Debentures or the shares of the Common Stock issuable upon
the conversion of the Debentures.
3.2 Stock Not Registered. You acknowledge that;
(a) neither the Debentures nor the shares of the Common
Stock issuable upon conversion of the Debentures have
been registered under the Securities Act or
applicable state securities laws on the ground that
the issuance to you is exempt from registration under
the Securities Act;
(b) the Company's reliance on such exemption is
predicated on your representations;
(c) the Debentures and shares of Common Stock must be
held indefinitely unless the offer and sale are
registered under the Securities Act, and applicable
state securities laws, or an exemption from
registration is available. In particular, you
acknowledge that the Debentures, and any Common Stock
issued on conversion, may not be sold pursuant to
Rule 144 promulgated under the Securities Act unless
all of the conditions of such rule are met. Among the
conditions for use of Rule 144 is the availability to
the public of current information about the Company.
Such information is not now available and the Company
has no present plans to make such information
available;
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(d) in the absence of an effective registration statement
covering the Debentures, or any Common Stock issued
on conversion thereof, you will sell, transfer, or
otherwise dispose of the Debentures, or any Common
Stock issued on conversion, only in a manner
consistent with your representations and then only in
accordance with the provisions of Section 4.1 of this
Agreement;
(e) any certificate representing the Debentures, and the
shares of the Common Stock issuable upon conversion
of the Debentures, will bear the legend set forth in
Section 4.2 and that the Company may issue
appropriate "stop transfer" instructions to its
transfer agent, if any, with respect to such shares
or make appropriate notations to such effect in its
own stock transfer records; and
(f) any certificate representing the Debentures, and the
shares of the Common Stock issuable upon conversion
of the Debentures, may bear any legends required by
applicable state securities laws.
3.3 Investment Experience. You (a) have such knowledge and
experience in financial and business matters that you are
capable of evaluating the merits and risks of the purchase of
the Debentures, (b) have a net worth significantly in excess
of the amount of your investment in the Debentures and are
able to bear the economic risk of the purchase of the
Debentures, and (c) have had access to information with
respect to the Company necessary to permit you to make an
informed investment decision.
3.4 Organization. On the date of this Agreement, and on the
Closing Date, (a) if you are a corporation, you are duly
organized and validly existing under the laws of your state of
incorporation, you are and will be in good standing under such
laws and you have the requisite corporate power and authority
to enter into this Agreement, (b) if you are a general or
limited partnership, you are and will be a general or limited
partnership duly organized and validly existing under the laws
of your state of formation, and you are and will be in good
standing under such laws, and you have and will have all
requisite partnership power and authority to enter into this
Agreement, (c) you have duly authorized, executed and
delivered this Agreement to the Company, and (4) upon
execution and delivery by the Company, this Agreement
constitutes your valid and binding agreement, enforceable in
accordance with its terms. Enforceability of any agreement may
be limited by bankruptcy, insolvency, moratorium and equitable
principles applicable to creditors generally.
4. SECURITIES ACT AND RELATED MATTERS.
4.1 Transfer Restrictions. You will not offer for sale, sell or
transfer all or any part of the Debentures, or the shares of
the Common Stock or other securities into which the Debentures
are convertible, unless (1) the sale is registered under the
Securities Act, and all other qualifications and proceedings
required under other
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state or federal laws or regulations have been obtained or
taken, or (2) an exemption from registration or qualification
under the Securities Act and any applicable state securities
or "blue sky" laws is available and the Company has received
an opinion of counsel reasonably satisfactory to the Company
that registration is not required.
4.2 Legend on Certificate. Each certificate representing the
Debentures, or any shares of the Common Stock or other
securities issued upon conversion of the Debentures, will bear
a legend in substantially the following form (unless the
Company has received in the opinion of counsel reasonably
satisfactory to the Company that a legend is not necessary):
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAW OF ANY STATE. THE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF EFFECTIVE REGISTRATION
STATEMENTS OR AN OPINION OF COUNSEL ACCEPTABLE TO
THIS COMPANY THAT REGISTRATION IS NOT REQUIRED."
Each certificate will also bear any legends required by
applicable state securities laws. In this Agreement
"Restricted Security" means the Debentures and shares of the
Common Stock or other securities issued upon conversion of the
Debentures and represented by certificates bearing the legend
set forth in this Section 4.2 and "Restricted Stock" means
shares of Common Stock issued upon conversion of the
Debentures and represented by certificates bearing the legend
set forth in this Section 4.2.
4.3 Registration Proposed by Company.
(a) Notice of Registration. If the Company proposes to
register any of its securities under the Securities
Act it will give written notice to every holder of a
Restricted Security except that the Company need not
give notice of (1) a registration solely to implement
an employee benefit plan, (2) a transaction to which
Rule 145 under the Securities Act is applicable, or
(3) a registration using any form that does not
permit secondary sales of securities.
(b) Participation by Holders. If any holder of a
Restricted Security delivers to the Company, within
30 days of the Company's notice to the holders, a
notice stating the number of shares of Restricted
Stock to be registered and the intended method of
disposition, the Company will use its best efforts to
register under the Securities Act the shares of
Restricted Stock requested to be registered (1) in
connection with the registrations of securities to be
sold for the Company's account, (2) at its own
expense to
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the extent provided in Section 4.5, and (3) to the
extent required to permit disposition in accordance
with the intended method.
(c) Limitations on Company's Obligation. If the Company's
proposed registration relates to an underwritten
public offering by the Company, the Company is not
required to register shares of Restricted Stock
unless the requesting holders agree to include them
in the underwriting. If the sole or managing
underwriter of the offering determines that the
aggregate number of shares of Restricted Stock
included in the registration should be limited due to
market conditions or the necessity of including
shares to be sold for the account of the Company,
then each holder who has requested that shares of
Restricted Stock be included may sell only a prorata
portion of shares of Restricted Stock.
4.4 Registration Requested by Purchasers.
(a) Request for Registration. The holder or holders of
50% of the Restricted Securities may request that
the Company register Restricted Stock at any time
(1) before the Company gives written notice of its
intention to register its securities under Section
4.3 (but only if the registration becomes effective
within six months after the Company gives the
notice) and (2) after the later of (i) May ___, 1997
or (ii) 12 months after the effective date of any
prior registration statement covering shares of the
Company's stock. In determining whether 50% of the
holders of Restricted Securities have made a
request, Restricted Stock and other securities
issued upon conversion of the Debentures will be
counted on the basis of the amount of Debentures
from which they were converted.
(b) Content of Request. The request must state the
number of shares of Restricted Stock to be
registered and the intended method of disposition.
The Company is not obligated to file a registration
statement if the expected price to the public of the
offering of Restricted Stock is less than
$15,000,000.
(c) Required Registration. Upon receipt of a request
that satisfies the requirements stated above, the
Company will upon one occasion (1) promptly give
written notice of the proposed registration to every
other holder of Restricted Securities and (2) as
expeditiously as possible (and in any event within
90 days) use its best efforts, at its own expense to
the extent provided in Section 4.5, to effect
registration under the Securities Act of
(i) the sale of the Restricted Stock which is
the subject of the written request referred
to above, and
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(ii) all other Restricted Stock whose holders
make written request for registration to the
Company within 30 days after the Company
gives them notice of the proposed
registration
all to the extent required to permit the disposition by the
holders of the securities so registered. In connection with
any registration, the Company will execute any required
undertakings to file post-effective amendments.
(d) Limitations on Company's Obligation. The Company is
not obligated under this Section 4.4 after (1) one
registration, filed pursuant to any holder's request
under this Section 4.4 (other than a delayed
registration as described below), has become
effective or (2) you and your permitted transferees
hold less than 10% of the Restricted Securities
initially issued and sold pursuant to this Agreement.
(e) Delay of Registration. If, within ten days after the
Company receives a request for registration under
subsection (a), the Company furnishes a certificate
stating that the Company intends to file within 60
days a registration statement for an underwritten
public offering of securities for the Company's
account, then the Company is not obligated to file a
registration under this Section 4.4 for six months
from the date of the Company's certificate. The
Company must make all reasonable efforts to cause the
registration statement for the underwritten public
offering to become effective as soon as reasonably
practicable. The Company may invoke this subsection,
and delay a registration requested under Section 4.4,
only one time.
4.5 Costs and Expenses. The Company will pay all its costs and
expenses in connection with a registration of securities under
Sections 4.3 or 4.4, including Federal and state registration
and filing fees, printing expenses (including a reasonable
number of preliminary and final prospectuses, post-effective
amendments, and supplements requested by the holders of
Restricted Stock), and the fees and disbursements of counsel,
independent accountants, and other experts of the Company. The
Company will not pay underwriter's discounts and commissions
or the fees and disbursements of counsel, independent
accountants, or other experts of the holders of Restricted
Stock. The Company will use its best efforts to keep effective
any registration for the period reasonably necessary to effect
disposition in accordance with the intended methods described
in the requests for registration. If the Company is requested
or required to maintain the registration effective for more
than six months the holders of securities who have requested
that effectiveness be maintained, in order to continue with
the distribution, will pay (in such proportions as they may
agree upon) all out-of-pocket expenses of the Company incurred
in maintaining effectiveness after the initial six-month
period.
4.6 Information. The holders of Restricted Stock covered by a
registration statement under Sections 4.3 or 4.4 will furnish
to the Company (in writing) any
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information regarding them, Restricted Securities held by
them, and the intended method of disposition of the Restricted
Stock as the Company reasonably requests or as is required in
connection with the registrations under Sections 4.3 or 4.4.
4.7 Blue Sky Registrations. In any registration under this Section
4, the Company will use its best efforts to register or
qualify the Restricted Stock for sale under the securities
laws of those states in which registration or qualification is
required, except that the Company is not required (a) to
execute a general consent to service or (b) to qualify to do
business in any state.
4.8 Lockup Agreement. In connection with any registration of the
Company's securities, upon request of the underwriters
managing the offering, each holder of Restricted Securities
will execute an agreement not to sell, make a short sale of,
loan, grant an option for the purchase of, or otherwise
dispose of any Restricted Stock (other than shares included in
the registration or shares sold with the underwriters' prior
written consent) for up to 90 days after the effective date of
the registration.
4.9 Transferability. If the requirements of Section 4.1 have been
satisfied for the sale or transfer of a Restricted Security,
the transferee will be entitled to the rights and benefits of,
and will be subject to the requirements of, Sections 4.1
through 4.8.
5. COMPANY'S AFFIRMATIVE COVENANTS. The Company will comply with the
following requirements unless holders of more than 50% of the
outstanding Restricted Securities agree otherwise in writing. These
requirements will terminate upon the earlier of (1) the closing date of
an underwritten public offering of the Company's common stock pursuant
to an effective registration statement under the Securities Act or (2)
the date when less than 25% of the Restricted Securities are held by
the original holders of the Debentures or their permitted transferees.
These requirements may be amended by a written agreement between the
Company and holders of more than 50% of the outstanding Restricted
Securities. The financial covenants below are substantially the same as
the covenants established in the revolving credit facility entered into
between the Company and Norwest Business Credit, Inc. ("NBCI") as of
May 1994; you agree that, upon any revision or refinancing of the
Company's principal credit facility it is your intention to consent to
the amendment of the financial covenants in this Agreement so that they
are consistent with the terms of the new or revised credit facility.
5.1 Reporting Requirements. The Company will deliver to you each
of the following:
(a) Annual Financial Statements. No later than 90 days
after the end of each Company fiscal year, audited
financial statements including
(1) the Company's balance sheet as at the end of
the fiscal year, and
(2) the related statements of income, retained
earnings, and cash flows of the Company for
the fiscal year.
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The financial statements will be in reasonable detail
and prepared in accordance with generally accepted
accounting principles consistently applied. The
financial statements will be accompanied by the
unqualified opinion of independent public accountants
selected by the Company and a certificate of the
Company's chief financial officer stating (i) that
the financial statements were prepared in accordance
with generally accepted accounting principles
consistently applied, (ii) whether such officer has
knowledge of the occurrence of any default under this
Agreement and, if so, a statement in reasonable
detail of the nature of the default, and (iii)
computations showing whether the Company is in
compliance with the financial covenants set forth in
this Agreement;
(b) Shareholder Information. Promptly upon their
distribution, copies of all financial statements,
reports and proxy statements the Company sends to its
stockholders;
(c) SEC Filings. Promptly after their filing, copies of
all regular and periodic financial reports the
Company files with the Securities and Exchange
Commission or any national securities exchange;
(d) Notice of Violations. Promptly upon knowledge
thereof, notice of the Company's violation of any
law, rule or regulation which could materially and
adversely affect the Company's business or financial
condition; and
(e) Other Information. From time to time, with reasonable
promptness, all other materials, reports, records, or
information relating to Company's financial
condition, operations, or affairs as you may
reasonably request.
5.2 Books and Records. The Company will keep accurate books,
records, and accounts of the Company's business and financial
condition.
5.3 Compliance with Laws; Environmental Indemnity. The Company
will
(a) comply with the requirements of applicable laws and
regulations whose violation would materially and
adversely affect the Company's business or financial
condition, and
(b) comply with all applicable Environmental Laws and
obtain any permits, licenses, or approvals required
by any such Environmental Laws. The Company will
indemnify, defend, and hold you harmless from and
against any claims, loss, or damage resulting from
any past, present, or future existence, use,
handling, storage, transportation, or disposal of any
hazardous waste, hazardous substance, or toxic
substance by the Company or on property owned,
leased, or controlled by the Company. This
indemnification agreement will survive the
termination of this Agreement and payment of the
indebtedness hereunder.
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5.4 Payment of Taxes and Other Claims. The Company will pay or
discharge, when due,
(a) all taxes, assessments, and governmental charges
levied or imposed upon it, upon its income or
profits, or upon any properties belonging to it. Such
amounts will be paid before the date when penalties
attach thereto,
(b) all federal, state, and local taxes required to be
withheld by it, and
(c) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien or
charge upon any properties of the Company.
The Company is not required to pay any tax, assessment,
charge, or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
5.5 Maintenance of Properties. The Company will maintain the
properties used in its business in good condition, repair, and
working order (normal wear and tear excepted). The Company
will replace or repair worn, defective, or broken parts, but
nothing in this section prevents the Company from
discontinuing the operation and maintenance of any of its
properties if such discontinuance is in its judgment
desirable.
5.6 Insurance. The Company will obtain and at all times maintain
insurance with insurers believed by the Company to be
responsible and reputable, in such amounts and against such
risks as is usually carried by companies engaged in similar
business and owning similar properties in the same general
areas in which the Company operates.
5.7 Preservation of Corporate Existence. The Company will preserve
and maintain its corporate existence and all rights,
privileges, and franchises necessary or desirable in the
conduct of its business. The Company will conduct its business
in an orderly, efficient, and regular manner.
5.8 Book Net Worth. The Company will maintain on the last day of
each quarter occurring in each of the periods set forth below,
a Book Net Worth (as that term is defined in the Company's
credit agreement with NBCI dated May 3, 1994) greater than or
equal to the amount set forth opposite such period:
PERIOD BOOK NET WORTH
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Through June 29, 1995 ($2,650,000)
June 30, 1995 through September 29, 1995 ($1,000,000)
September 30, 1995 through December 30, 1995 ($ 800,000)
December 31, 1995 through March 30, 1996 ($ 900,000)
March 31, 1996 through June 29, 1996 ($ 400,000)
June 30, 1996 through September 29, 1996 $1,000,000
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September 30, 1996 and thereafter $1,600,000
5.9 Earnings Before Interest and Taxes. The Company will maintain
on each date set forth below operating income (determined in
accordance with generally accepted accounting principles but
before any deduction for interest expenses and income taxes
and calculated for the twelve months ending on such date)
greater than or equal to the amount set forth opposite such
date:
DATE EBIT
June 30, 1995 $3,600,000
September 30, 1995 $3,800,000
December 31, 1995 $3,800,000
March 31, 1996 $4,000,000
June 30, 1996 $4,300,000
September 30, 1996 and each fiscal quarter $4,300,000
end thereafter
5.10 Interest Coverage. The Company will maintain on each date set
forth below, the ratio of (i) the sum of its pre-tax net
income, to (ii) interest expense (in each case determined in
accordance with generally accepted accounting principles, and
calculated for the twelve months ending on such date) greater
than or equal to the ratio set forth opposite such date:
DATE RATIO
---- -----
June 30, 1995 2.00 to 1
September 30, 1995 2.00 to 1
December 31, 1995 2.00 to 1
March 31, 1996 2.00 to 1
June 30, 1996 2.00 to 1
September 30, 1996 and each fiscal quarter 2.00 to 1
end thereafter
5.11 Minimum Debt Service Coverage. The Company will maintain on
each date set forth below, the ratio of (i) the sum of its
after-tax net income, depreciation, and amortization expense
and interest expense, to (ii) the sum of its interest, capital
expenditures, and current maturities of long term debt
(excluding as long term debt, the indebtedness of the Company
to NBCI incurred pursuant to the credit agreement between
Company and NBCI, or any replacement of such indebtedness) (in
each case determined in accordance with generally accepted
accounting principles, and calculated for the twelve months
ending on such date) greater than or equal to the ratio set
forth opposite such date:
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DATE RATIO
---- -----
June 30, 1995 1.50 to 1
September 30, 1995 1.50 to 1
December 31, 1995 1.50 to 1
March 31, 1996 1.50 to 1
June 30, 1996 1.50 to 1
September 30, 1996 and each fiscal quarter 1.50 to 1
end thereafter
6. COMPANY'S NEGATIVE COVENANTS. The Company will comply with the
following requirements unless holders of more than 50% of the
outstanding Restricted Securities agree otherwise in writing. These
requirements will terminate upon the earlier of (1) the closing date of
an underwritten public offering of the Company's common stock pursuant
to an effective registration statement under the Securities Act or (2)
the date when less than 25% of the Restricted Securities are held by
the original holders of the Debentures or their permitted transferees.
These requirements may be amended by a written agreement between the
Company and holders of more than 50% of the outstanding Restricted
Securities.
6.1 Dividends and Stock Repurchases. The Company will not declare
or pay any dividends (other than dividends payable solely in
stock of the Company) on any class of its stock or make any
payment on account of the purchase, redemption or other
retirement of any shares of such stock or make any
distribution in respect thereof, either directly or
indirectly. If the Company becomes an S Corporation (with your
consent and after first providing such supporting
documentation as you may request) the Company may pay
dividends equal to the amount of state and federal income tax
which would be due for each shareholder with respect to income
allocated to each shareholder as a result of the Company's
status as an S Corporation at the highest marginal income tax
rate for federal and state income tax purposes (after taking
into account any deduction for state income taxes in
calculating the federal income tax liability and for the state
or states in which each shareholder is liable for income
taxes).
6.2 Sale or Transfer of Assets; Suspension of Business Operations.
The Company will not sell, lease, assign, transfer, or
otherwise dispose of (a) the stock of any domestic Subsidiary
or (b) all or a substantial part of its assets to any other
person (other than the sale of Inventory in the ordinary
course of business) and will not liquidate, dissolve or
suspend business operations. The Company will not transfer any
material property without receipt of full and adequate
consideration. This Agreement does not restrict any sale or
other disposition of Company subsidiaries organized in
connection with the Company's operations outside the United
States.
6.3 Accounting. The Company will not adopt any material change in
accounting principles other than as required by generally
accepted accounting principles. The Company will not adopt,
permit or consent to any change in its fiscal year.
7. CONDITIONS OF OBLIGATION TO ISSUE AND SELL. The obligation of the
Company to issue and sell the Debentures to you at the Closing is
subject to the condition that the
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representations and warranties stated in Article 3 of this Agreement
must be correct when made and as of the time of the Closing.
8. CONDITIONS OF OBLIGATION TO PURCHASE. Your obligation to purchase and
pay for the Debentures at the Closing is subject to the following
conditions:
8.1 Representations and Warranties Correct. The representations
and warranties contained in Article 2 of this Agreement must
be correct when made and as of the time of the Closing.
8.2 Performance. The Company must have performed and complied with
all agreements and conditions contained in this Agreement and
required to be performed or complied with by it prior to or at
the Closing.
8.3 Closing Certificate. The Company must have delivered to you a
certificate, dated the Closing Date, certifying that the
conditions specified in Sections 8.1 and 8.2 have been
fulfilled.
8.4 Directors and Officers. The persons named in Schedule 8.4 must
have been duly elected to the respective positions of
directors and officers of the Company as set forth in Schedule
8.4.
8.5 Opinion of Counsel. The Company must have delivered to you the
opinion of Xxxxx and Xxxx in substantially the form set forth
in Schedule 8.5.
9. MISCELLANEOUS.
9.1 Expenses. The parties will each pay their own expenses
incurred in connection with the purchase and sale of the
Debentures.
9.2 Survival of Representations and Warranties. All covenants,
agreements, representations and warranties made in writing in
this Agreement will survive the execution and delivery of this
Agreement and the issuance, sale, and delivery of the
Debentures.
9.3 Binding Effect. All covenants, agreements, representations,
and warranties in this Agreement bind, and inure to the
benefit of, the respective heirs, legal representatives,
successors, and assigns of the parties. The rights of any
transferee of a Restricted Security, however, are subject to
compliance with Section 4.1.
9.4 Notices. All notices and other communications under this
Agreement must be in writing. They will be deemed given and
received when delivered or five days after deposit in the
United States mail, first class postage prepaid, addressed to
Company at:
000 Xxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
-13-
14
Attention: President
with a copy to:
Xxxxx and Roca
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
and addressed to you at the address stated in Exhibit A. Any
party may change the person, officer, or address to which
notices and communications are to be sent to it by giving
notice.
9.5 Amendments and Waivers. Neither this Agreement nor any of its
terms may be changed, waived, discharged, or terminated except
in a writing signed by the Company and by holders of more than
50% of the outstanding Restricted Securities.
9.6 Controlling Law. This Agreement is being executed and
delivered, and the Debentures are being delivered, in Arizona
and will be governed by the laws of Arizona.
9.7 Counterparts. This Agreement may be executed in several
counterparts and each counterpart, when executed and delivered
and whether or not each counterpart is executed by all the
parties, will constitute an original instrument. All the
separate counterparts will together constitute this Agreement
and are parts of the same instrument.
If you are in agreement with the foregoing, please sign the form of
acceptance appearing as part of the Subscription Agreement for purchase of the
Debentures and return the same to the Company. This Agreement will become a
binding agreement between you and the undersigned upon the Company's acceptance
of your executed Subscription Agreement for the Debentures.
Yours very truly,
-14-
15
ROCKFORD CORPORATION
By: /s/
--------------------------------
President
Attest /s/
-----------------------------
Assistant Secretary
16
EXHIBIT A
LIST OF DEBENTURE PURCHASERS AND AMOUNTS PURCHASED
NUMBER OF
NAME OF PRINCIPAL AMOUNT SHARES UPON
PURCHASER ADDRESS OF DEBENTURES CONVERSION
--------- ------- ------------- ----------
17
EXHIBIT B
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAW OF ANY STATE. THE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF EFFECTIVE REGISTRATION
STATEMENTS OR AN OPINION OF COUNSEL ACCEPTABLE TO
THIS COMPANY THAT REGISTRATION IS NOT REQUIRED."
ROCKFORD CORPORATION
8.5% CONVERTIBLE SUBORDINATED DEBENTURE DUE MAY 1, 2002
$1,760.00 May 1, 1995
1. PAYMENT OF PRINCIPAL AND INTEREST. Rockford Corporation, an Arizona
corporation (the "Company"), for value received, promises to pay to
Xxxx Xxxxxx or transferee, (the "Holder") the principal amount of
$1,760.00 on May 1, 2002 and to pay interest thereon at the rate of
eight and one-half percent (8.5%) per annum. Interest will accrue from
the date hereof and will be paid quarterly, on each January 15th, April
15th, July 15th, and October 15th hereafter (commencing on July 15,
1995) until the principal is fully paid. Interest will be paid on the
basis of a 360-day year of twelve 30-day months.
2. REDEMPTION PRIOR TO MATURITY. Subject to the following conditions, the
Company may, at its option, redeem all or part of this Debenture prior
to maturity at a redemption price of par (plus any interest accrued but
unpaid to the date fixed for redemption).
2.1 Conditions. The Company may redeem this Debenture only after
(a) the Company's Common Stock becomes publicly traded and
trades at a bid or closing price at least equal to one hundred
fifty percent (150%) of the then applicable Conversion Price
of this Debenture for a period of 30 consecutive trading days
or (b) the sale of all or substantially all of the Company's
business and assets to, or the merger or consolidation of the
Company with or into, any company whose stock is publicly
traded and whose stock trades at a bid or closing price at
least equal to one hundred fifty percent (150%) of the then
applicable Conversion Price of this Debenture for a period of
30 consecutive trading days.
2.2 Notice of Redemption. The Company must give notice of a
redemption not less than thirty (30) days, but not more than
ninety (90) days, before the date fixed for redemption. By the
date fixed for redemption, the Holder must surrender this
Debenture to the Company at its principal executive offices in
exchange for payment therefor. Upon due tender of the
redemption price by the Company, this Debenture will not be
deemed to be outstanding for any purpose subsequent to the
close of business on the date fixed for redemption.
-1-
18
3. SUBORDINATION AND PRIORITY. The indebtedness evidenced by this
Debenture, including the principal and accrued interest, is expressly
subordinate and subject in right of payment and upon liquidation to the
prior payment in full of all "Senior Debt," whether now outstanding or
hereafter created, incurred, assumed, or guaranteed.
3.1 Definition of "Senior Debt". The term "Senior Debt" means the
principal, premium (if any), and interest on (a) indebtedness
(other than this Debenture or any previously subordinated
debenture) of the Company evidenced by notes or similar
obligations for money borrowed from or guaranteed to persons,
firms, or corporations which engage in lending money,
including, but without limitation, individuals, banks, trust
companies, insurance companies and other financing
institutions, and charitable trusts, pension trusts, and other
investing entities or organizations, (b) indebtedness of the
Company evidenced by notes or debentures issued under the
provisions of an indenture or similar instrument between the
Company and a bank or trust company, (c) the indebtedness of
the Company evidenced by the Company's Senior Notes in an
aggregate principal amount of $2,000,000 (due January 12,
1998) and $1,680,000 (due February 3, 1999), and (d)
indebtedness incurred, assumed or guaranteed by the Company in
connection with the acquisition by it of any property or asset
unless, in each case, by the terms of the instrument creating
or evidencing the indebtedness it is expressly provided that
such indebtedness is not superior in right of payment to this
Debenture.
3.2 Exclusions from Senior Debt. Senior Debt excludes, and the
indebtedness evidenced by this Debenture is expressly senior
and entitled to priority in payment and upon liquidation with
respect to, all capital stock of the Company. Senior Debt
excludes, and the indebtedness evidenced by this Debenture is
expressly of equal priority in payment and upon liquidation
with respect to, (a) indebtedness outstanding on the original
issue date of this Debenture and convertible into shares of
the Company's Common Stock and (b) any indebtedness issued
after the date of this Debenture and convertible into shares
of the Company's Common Stock.
4. EVENTS OF DEFAULT. An Event of Default will be deemed to occur upon the
occurrence of any of the following events:
4.1 Default in the payment of interest on this Debenture when it
becomes due and payable, and continuance of such default for a
period of ten (10) days after notice;
4.2 Default in the payment of the principal of this Debenture when
it becomes due and payable;
4.3 Default by the Company under an acceleration prior to maturity
of, or the failure to pay at maturity, any third party
indebtedness of the Company aggregating $250,000 or more for a
period of thirty (30) days after the same may become payable;
-2-
19
4.4 The failure of the Company to comply, for a period of 30 days
after notice of default, with any affirmative or negative
covenant contained in the Purchase Agreement of even date
herewith between the Company and the original Holder hereof;
4.5 The failure of the Company to pay final judgments (not covered
by insurance or then subject to any appeal) aggregating
$500,000 or more for 30 days;
4.6 The entry of a decree or order by a court having jurisdiction
adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment, or composition of or in respect of the Company
under the Federal Bankruptcy Act or any other applicable
Federal or State law, or appointing a receiver, liquidator,
assignee, trustee, or other similar official of the Company or
of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a
period of 60 days; or
4.7 The institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under Federal or
State law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator,
assignee, trustee, or other similar official of the Company or
of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action.
5. RIGHTS UPON DEFAULT; ACCELERATION OF INDEBTEDNESS. Upon the occurrence
of an Event of Default:
5.1 The entire outstanding balance of the Debenture, including the
entire balance of principal and all accrued interest, will
accelerate and become immediately due and payable upon written
notice to the Company by the Holder; and
5.2 The Company may not pay dividends or make distributions to
holders of any class of its stock, or redeem or repurchase all
or any part of any class of its stock.
6. CONVERSION OF DEBENTURE. This Debenture is convertible, at the option
of the Holder, into shares of the Company's Common Stock on the
following basis:
6.1 Conversion Price. A conversion may be made, at any time before
the close of business on the business day before the maturity
or redemption date, at the rate of $10.50 per share, subject
to adjustment as provided in this Debenture (the "Conversion
Price"). The Company is not required to issue fractional
shares of Common Stock or other capital stock upon conversion
of this Debenture and, in lieu thereof, will pay a cash
adjustment based upon the then current fair market
-3-
20
value of the Common Stock as determined by the Board of
Directors on the last business day before the date of
conversion.
6.2 Adjustment Based Upon Stock Dividends Combination of Shares or
Recapitalization. The Conversion Price and the number of
Shares will be adjusted if the Company, at any time after the
original issuance of this Debenture,
(a) pays a stock dividend on its Common Stock,
(b) subdivides its outstanding shares of Common Stock
into a greater number of shares,
(c) combines its outstanding shares of Common Stock into
a smaller number of shares,
(d) issues by reclassification of its shares of Common
Stock any other special capital stock of the Company,
or
(e) distributes to all holders of its Common Stock
evidences of indebtedness or assets (excluding cash
dividends) or rights or warrants to subscribe for
Common Stock (other than those mentioned above).
On or after the occurrence of an event or events requiring
adjustment of the Conversion Price, the Holder upon surrender
of this Debenture for conversion will be entitled to receive
the number of shares of Common Stock or other securities of
the Company which the Holder would have owned or been entitled
to receive had this Debenture been converted immediately
before the happening of the event requiring adjustment of the
Conversion Price.
6.3 Adjustment Based Upon Stock Issuances. The Conversion Price
will be adjusted if, at any time after the original issuance
of this Debenture, the Company issues Common Stock, issues
rights or warrants to subscribe for or purchase Common Stock,
or issues securities convertible into or exchangeable for
Common Stock at less than the Conversion Price. Upon the
occurrence of an event or events requiring adjustment of the
Conversion Price under this section the Conversion Price will
be adjusted to be equal to the price of the new issue. An
adjustment under this section will not increase the number of
shares of Common Stock, or other securities, which the Holder
will be entitled to receive upon surrender of this Debenture
for conversion, but will only reduce the Conversion Price
which the Holder must pay to acquire such Common Stock or
other securities. Any amount of this Debenture not required to
be used in a conversion, because of an adjustment of the
Conversion Price under this section, must be paid by the
Company to the Holder upon any redemption or upon maturity of
this Debenture.
6.4 Adjustment Based Upon Merger or Consolidation. In case of any
consolidation or merger to which the Company is a party (other
than a merger in which the Company is the surviving entity and
which does not result in any reclassification
-4-
21
of or change in the outstanding Common Stock of the Company)
or in case of any sale or conveyance to another person, firm,
or corporation of the property of the Company as an entirety
or substantially as an entirety, the Holder will have the
continuing right to convert this Debenture into the kind and
amount of securities and property (including cash) receivable
upon such consolidation, merger, sale, or conveyance by a
holder of the number of shares of Common Stock into which this
Debenture might have been converted immediately before the
consolidation, merger, sale, or conveyance.
6.5 No Adjustment for Outstanding Conversion and Option Rights and
Certain Other Securities. Notwithstanding any other section of
this Agreement, no adjustment of the Conversion Price will be
made upon the issuance by the Company of
(a) Common Stock upon conversion or exchange of
securities convertible or exchangeable into Common
Stock and outstanding on or before the date of this
Debenture,
(b) Common Stock upon exercise of any employee's stock
option outstanding on or before the date of this
Debenture, or
(c) Common Stock or securities convertible into Common
Stock, not amounting to more than 10% of the
Company's issued and outstanding Common Stock, issued
after the date of this Debenture pursuant to an
employee benefit plan of the Company.
6.6 Exercise of Conversion Privilege. The Conversion Privilege is
exercisable by the Holder upon written notice to the Company
(or its successor) and the surrender of this Debenture in
exchange for the number of shares of Common Stock (or other
securities and property, including cash, in the event of an
adjustment of the Conversion Price) into which this Debenture
is convertible based upon the Conversion Price. Conversion
rights will expire at the close of business on the business
day before the maturity or redemption date.
7. CORPORATE STATUS OF SHARES TO BE ISSUED. All shares of the Company's
Common Stock (or other securities in the event of an adjustment of the
Conversion Price) issued upon the conversion of this Debenture will,
upon issuance, be fully paid and nonassessable.
8. ISSUANCE OF STOCK CERTIFICATE. Upon conversion of this Debenture, the
Company will forthwith issue to the Holder a certificate or
certificates representing the number of shares of its Common Stock (or
other securities in the event of an adjustment of the Conversion Price)
to which the conversion relates.
9. STATUS OF HOLDER OF DEBENTURE. This Debenture does not entitle the
Holder to any voting rights or other rights as a shareholder of the
Company. No dividends are payable or accrue in respect of this
Debenture, or the securities issuable upon conversion, unless and until
this Debenture is converted. Upon the conversion of this Debenture, the
Holder will (to the extent permitted by law) be deemed to be the holder
of record of the shares of
-5-
22
Common Stock issuable upon conversion, notwithstanding that the stock
transfer books of the Company are then closed or that the certificates
representing the shares of Common Stock are not then actually
delivered.
10. LOSS OR DESTRUCTION OF DEBENTURE. The Company will execute and deliver
a new debenture of like tenor and date upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction, or
mutilation of this Debenture and (a) in the case of loss, theft, or
destruction, of an indemnity by the Holder, (b) in case of any
transfer, upon such terms as are satisfactory to the Company, or (c) in
the case of mutilation, upon surrender and cancellation of this
Debenture.
11. RESERVATION OF SHARES. The Company will reserve out of its authorized
shares of Common Stock (and other securities in the event of an
adjustment of the Conversion Price) a number of shares sufficient to
enable it to comply with its obligation to issue shares of Common Stock
(and other securities in the event of an adjustment of the Conversion
Price) upon the conversion of this Debenture.
12. STATUS UNDER SECURITIES LAWS.
12.1 No Registration. This Debenture has not been, and the
securities issuable upon conversion hereof will not be,
registered under the Securities Act of 1933 (the "1933 Act"),
the Arizona Securities Act (the "Arizona Act") or the
securities laws of any other jurisdiction. This Debenture, and
such securities, must be held indefinitely without any
transfer, sale, or other disposition unless (a) subsequently
registered under the 1933 Act, the Arizona Act and the
securities laws of any other applicable jurisdiction or (b) in
the opinion of counsel acceptable to the Company, registration
is not required under such Acts or laws.
12.2 Legend. There will be endorsed on this Debenture, and on the
certificates evidencing any securities issued upon the
conversion of this Debenture, a legend substantially to the
following effect:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAW OF ANY STATE. THE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF EFFECTIVE REGISTRATION
STATEMENTS OR AN OPINION OF COUNSEL ACCEPTABLE TO
THIS COMPANY THAT REGISTRATION IS NOT REQUIRED."
12.3 Restriction on Other Securities. Except in certain limited
circumstances, the restrictions on the transfer of this
Debenture will also apply to (a) securities issued upon
conversion of this Debenture and (b) shares of capital stock
or other securities issued or otherwise acquired on account of
the Debenture (or securities issued upon conversion of the
Debenture) including, without limitation, shares
-6-
23
and securities issued or acquired as a result of a stock
dividend, stock split or exchange, or any distribution of
shares or securities pursuant to any corporate reorganization,
reclassification, or similar event.
12.4 Refusal to Transfer. The Company may refuse to effect a
transfer, sale or other disposition of this Debenture, or the
shares issuable upon conversion, by the Holder or its
successors or assigns otherwise than as expressly permitted by
this Debenture.
13. MISCELLANEOUS.
13.1 Purchase Agreement. This Debenture, and the indebtedness
evidenced hereby, is issued and incurred subject to the terms
of the Purchase Agreement between the Company and the original
Holder, the terms and conditions of which are binding upon any
subsequent Holder or transferee of this Debenture.
13.2 Governing Law. This Debenture, and all questions relating to
its validity, interpretation, performance, and enforcement is
governed by and will be construed in accordance with the laws
of Arizona, notwithstanding any Arizona or other
conflict-of-law provisions to the contrary.
13.3 Binding Nature of Debenture. This Debenture is binding upon
any successors and assigns of the Company and will inure to
the benefit of the Holder and its successors and assigns,
except that the Holder may not assign or transfer its rights
under this Debenture otherwise than by gift or bequest, by
operation of law, or as expressly permitted by this Debenture.
13.4 Notices. All notices and other communications under this
Debenture must be in writing and will be deemed given and
received when delivered or five days after they are deposited
in the United States mails, first class postage prepaid
addressed as set forth in the Purchase Agreement. Either party
may alter the person, office or address to which
communications or copies are to be sent by giving notice.
13.5 Amendment and Waivers. Neither this Agreement nor any of its
terms may be changed, waived, discharged, or terminated except
in a writing signed by the Company and by holders of more than
50% of the outstanding Restricted Securities (as that term is
defined in the Purchase Agreement).
-7-
24
14. EXECUTION DATE. The Company has caused this Debenture to be duly
executed on the date written above.
ROCKFORD CORPORATION
By:/s/
------------------------------------------
President
Attest: /s/
------------------------------------------
Secretary
-8-
25
[ROCKFORD LOGO]
Schedule 2.1
Rockford Corporation
Subsidiaries
1. Rockford Europe b.v.
2. Rockford Foreign Corporation
3. Rockford Hong Kong
4. Rockford Europe Elektonik Vertriebs GmbH
5. Rockford Japan Corporation
26
SCHEDULE 2.2
AUTHORIZED AND OUTSTANDING STOCK
AND
CONVERTIBLE SECURITIES
AUTHORIZED STOCK: 10,000,000 Shares of Common Stock, par value $0.01
per shares
OUTSTANDING COMMON STOCK: 809,011 Shares
CONVERTIBLE SECURITIES:
$150,000 7% Convertible Subordinated Debentures,
due March 31, 1996, convertible into
15,000 Shares of Common Stock
$2,000,000 Senior Note, due January 12, 1998, with associated
warrants to purchase 167,400 Shares of Common Stock
$1,640,000 Senior Notes, due February 3, 1999, with
associated warrants to purchase 71,305
Shares of Common Stock
$1,640,000 Senior Notes, due February 3, 1999, with
associated warrants to purchase 71,305
Shares of Common Stock
Warrants to purchase 39,161 Shares of Common
Stock, issued to Bank of America Arizona
Option to purchase 50,000 Shares of Common
Stock, issued to Xxxxxxxx, Xxxxx & Xxxxxxxx
Options to purchase 133,204 Shares of Common
Stock, issued under the Company's 1994
Stock Option Plan
Total Common Stock issuable if all debentures, warrants and options were
converted: 611,070 Shares
Fully diluted Common Stock: 1,420,081 Shares
27
SCHEDULE 2.3
Consolidated Financial Statements
and Other Financial Information
ROCKFORD CORPORATION
September 30, 1994
28
Rockford Corporation
Consolidated Financial Statements
and Other Financial Information
Years ended September 30, 1994 and 1993
CONTENTS
Report of Independent Auditors............................................. 1
Audited Consolidated Financial Statements
Consolidated Balance Sheets................................................ 2
Consolidated Statements of Operations...................................... 3
Consolidated Statements of Stockholders' Equity (Deficit).................. 4
Consolidated Statements of Cash Flows...................................... 5
Notes to Consolidated Financial Statements................................. 6
Other Financial Information
Report of Independent Auditors on Other Financial Information.............. 16
Consolidating Balance Sheet................................................ 17
Consolidating Statement of Operations...................................... 19
29
[ERNST & YOUNG LLP letterhead]
Report of Independent Auditors
The Board of Directors and Stockholders
Rockford Corporation
We have audited the accompanying consolidated balance sheets of Rockford
Corporation and subsidiaries as of September 30, 1994 and 1993, and the related
consolidated statements of operations, stockholders' equity (deficit), and cash
flows for the years then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial positions of Rockford
Corporation and subsidiaries at September 30, 1994 and 1993, and the
consolidated results of their operations and their cash flows for the years then
ended in conformity with generally accepted accounting principles.
/s/ Ernst & Young LLP
November 23, 0000
-0-
00
Xxxxxxxx Corporation
Consolidated Balance Sheets
SEPTEMBER 30
1994 1993
-------- --------
(IN THOUSANDS)
ASSETS
Current assets:
Cash $ 120 $ 765
Accounts receivable, less allowances of $715,000 in 1994 and
$733,000 in 1993 10,539 9,601
Inventories, net 5,885 6,289
Prepaid expenses, insurance receivable, and other 634 1,835
Deferred income taxes 2,100 --
-------- --------
Total current assets 19,278 18,490
Property and equipment, net 3,015 3,052
Deferred income taxes 170 --
Other assets, net of accumulated amortization of $683,000 in 1994 and
$506,000 in 1993 282 371
-------- --------
Total assets $ 22,745 $ 21,913
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Bank overdraft $ 300 $ 917
Accounts payable 5,264 6,463
Current portion of notes payable, long-term debt, and capital lease
obligations 1,587 13,240
Accrued payroll, commissions, and other 2,750 2,370
Accrued warrant 1,570 1,300
Income taxes payable 400 231
-------- --------
Total current liabilities 11,871 24,521
Notes payable and long-term debt, less current portion 10,778 2,133
Capital lease obligations, less current portion 51 48
-------- --------
10,829 2,181
Lease commitments and contingencies -- --
Stockholders' equity (deficit):
Common stock, $.01 par value
Authorized shares - 10,000,000
Issued and outstanding shares - 608,061 6 6
Additional paid-in-capital 765 770
Deferred stock grants -- (29)
Accumulated deficit (531) (5,436)
Currency translation adjustments (195) (100)
-------- --------
Total stockholders' equity (deficit) 45 (4,789)
-------- --------
Total liabilities and stockholders' equity (deficit) $ 22,745 $ 21,913
======== ========
See accompanying notes.
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31
Rockford Corporation
Consolidated Statements of Operations
YEAR ENDED SEPTEMBER 30
1994 1993
-------- --------
(In thousands)
Sales, net of returns and discounts of $12,215,000 in 1994 and
$11,171,000 in 1993 $ 63,051 $ 57,449
Cost of goods sold 39,565 41,479
-------- --------
Gross profit 23,486 15,970
Operating expenses:
Engineering 1,347 1,435
Commissions 4,159 4,010
Marketing expenses 5,076 6,137
Freight programs 1,450 1,465
General and administrative 6,430 5,262
-------- --------
18,462 18,309
-------- --------
Operating income (loss) 5,024 (2,339)
Other income (expense):
Interest expense (1,593) (1,591)
Other (96) 1,048
-------- --------
Income (loss) before benefit (provision) for income taxes and cumulative
effect of a change in accounting for income taxes 3,335 (2,882)
Benefit (provision) for income taxes 1,570 (90)
-------- --------
Income (loss) before cumulative effect of accounting change 4,905 (2,972)
Cumulative effect as of September 30, 1992 of change in method of
accounting for income taxes -- (827)
-------- --------
Net income (loss) $ 4,905 $ (3,799)
======== ========
See accompanying notes.
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32
Rockford Corporation
Consolidated Statements of Stockholders' Equity (Deficit)
(In thousands)
Common Stock Additional Deferred Currency
----------------- Paid-In Stock Accumulated Translation
Shares Amount Capital Grants Deficit Adjustments Total
------ ------ ------- ------ ------- ----------- -----
Balance at October 1, 1992 608 $ 6 $ 770 $ (58) $(1,637) $ 89 $ (830)
Amortization of deferred stock grants -- -- -- 29 -- -- 29
Currency translation -- -- -- -- -- (189) (189)
Net loss -- -- -- -- (3,799) -- (3,799)
----- ------- ------- ------- ------- ------- -------
Balance at September 30, 1993 608 6 770 (29) (5,436) (100) (4,789)
Amortization of deferred stock grants -- -- -- 24 -- -- 24
Deferred stock grants canceled -- -- (5) 5 -- -- --
Currency translation -- -- -- -- -- (95) (95)
Net income -- -- -- -- 4,905 -- 4,905
----- ------- ------- ------- ------- ------- -------
Balance at September 30, 1994 608 $ 6 $ 765 $ -- $ (531) $ (195) $ 45
===== ======= ======= ======= ======= ======= =======
See accompanying notes.
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33
Rockford Corporation
Consolidated Statements of Cash Flows
YEAR ENDED SEPTEMBER 30
1994 1993
-------- --------
(In thousands)
OPERATING ACTIVITIES
Net income (loss) $ 4,905 $ (3,799)
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Cumulative effect of accounting change -- 827
Depreciation and amortization 1,484 1,499
Deferred income taxes (2,270) --
Provision for doubtful accounts -- 753
Provision for inventory allowances 513 1,765
Currency translation (95) (189)
Amortization of deferred stock grants 24 29
Changes in operating assets and liabilities:
Accounts receivable (938) (1,768)
Inventories (109) 92
Prepaid expenses, insurance receivable, and other 1,201 (964)
Bank overdraft (617) 229
Accounts payable 208 2,438
Accrued payroll, bonus, commissions, and other 380 73
Accrued warrant 270 1,100
Discontinued operations -- (240)
Income taxes payable 169 231
-------- --------
Net cash provided by operating activities 5,125 2,076
INVESTING ACTIVITIES
Purchases of property and equipment (1,204) (1,224)
Increase in other assets (88) (26)
-------- --------
Net cash used by investing activities (1,292) (1,250)
FINANCING ACTIVITIES
Proceeds from notes payable and long-term debt 8,436 322
Payments on notes payable and long-term debt (12,569) (479)
Payments on capital lease obligations (345) (674)
-------- --------
Net cash used by financing activities (4,478) (831)
-------- --------
Net decrease in cash (645) (5)
Cash at beginning of year 765 770
-------- --------
Cash at end of year $ 120 $ 765
======== ========
See accompanying notes.
-5-
34
Rockford Corporation
Notes to Consolidated Financial Statements
September 30, 1994
1. ACCOUNTING POLICIES
ORGANIZATION AND DESCRIPTION OF BUSINESS
Rockford Corporation (Company) is presently engaged in the business of
manufacturing and distributing car audio electronics and speaker systems under
the division names of "Rockford Fosgate," "Rockford Acoustic Designs (formerly
Xxxxxxxxxx)," "Xxxxxx" and "Perfect Interface." The Company was organized and
incorporated under the laws of the State of Arizona on July 22, 1980, and has
manufacturing facilities in Tempe, Arizona and Grand Rapids, Michigan.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly owned and majority owned subsidiaries in Germany and Japan.
Significant intercompany accounts and transactions have been eliminated in
consolidation.
RECEIVABLES
The Company sells its products principally to automotive stereo dealers
primarily in the United States, Europe and Asia. At September 30, 1994 and 1993,
net accounts receivable include approximately $475,000 and $247,000,
respectively, due from overseas businesses.
The Company also offers a prompt pay discount for certain invoices paid under 40
days of issuance and has included in its allowance for receivables at September
30, 1994 and 1993, approximately $180,000 with respect to accounts utilizing
such discounts after year-end.
INVENTORIES
Inventories consist principally of raw materials of electronic and mechanical
components used in the manufacturing of amplifier and speaker systems and
finished goods. Inventories are carried at the lower of cost or market using the
first-in, first-out (FIFO) method.
PROPERTY AND EQUIPMENT
Property and equipment is stated at cost. Depreciation and amortization are
computed principally on the straight-line method for financial reporting
purposes over a three to five year life.
-6-
35
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
1. ACCOUNTING POLICIES (CONTINUED)
INCOME TAXES
The Company accounted for income taxes under the provisions of Accounting
Principles Board Opinion Number 11 through September 30, 1992. Statement of
Financial Accounting Standard No. 109, "Accounting for Income Taxes" was issued
by the Financial Accounting Standards Board in February 1992 and was adopted by
the Company as of October 1, 1992 (see Note 6).
RESEARCH AND DEVELOPMENT
During the years ended September 30, 1994 and 1993, research and development
expense of approximately $1,347,000 and $1,435,000, respectively, was charged to
expense as incurred.
FOREIGN CURRENCY TRANSLATION
The financial statements of foreign subsidiaries have been translated into U.S.
dollars in accordance with FASB Statement No. 52. All balance sheet accounts
have been translated using the current exchange rates at the balance sheet date.
Income statement amounts have been translated using the average exchange rate
for the year. The gains and losses resulting from the change in exchange rates
from year to year have been reported separately as a component of stockholders'
equity (deficit). The effect on the statement of operations of transaction gains
and losses is insignificant.
RECLASSIFICATIONS
Certain amounts in the 1993 financial statements have been changed to conform
them to the 1994 presentation.
-7-
36
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
2. INVENTORIES
Inventories consisted of the following at September 30:
1994 1993
------- -------
(In thousands)
Raw materials $ 4,019 4,847
Work in progress 222 572
Finished goods 3,046 2,835
------- -------
7,287 8,254
Less allowances (1,402) (1,965)
------- -------
5,885 $ 6,289
======= =======
3. PROPERTY AND EQUIPMENT
Property and equipment consisted of the following at September 30:
1994 1993
------- -------
(In thousands)
Machinery and equipment $ 6,353 $ 5,842
Furniture and fixtures 191 185
Leasehold improvements 597 477
Vehicles 74 85
Demo equipment 108 108
Drawings and technical data 146 127
Tooling equipment 1,410 817
------- -------
8,879 7,641
Less accumulated depreciation and amortization (5,864) (4,589)
------- -------
$ 3,015 $ 3,052
======= =======
-8-
37
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
4. NOTES PAYABLE AND LONG-TERM DEBT
Notes payable and long-term debt consisted of the following at September 30:
1994 1993
------ ------
(In thousands)
$12,000,000 line of credit with a lender, paid in full during 1994 $ -- $8,888
$9,500,000 line of credit with a lender collateralized by substantially all
assets, with interest payments due monthly at the prime rate plus three
percent through December 31, 1994 (10.75 percent at September 30, 1994) and
at the prime rate plus two percent effective January 1, 1995 until April 1997
when all remaining principle and interest is due. Borrowings under this line
of credit are limited to the borrowing base defined substantially as a
percentage of inventory, as defined, and 75 percent of eligible accounts
receivable, as defined and adjusted in the agreement 6,848 --
10.5 percent senior note payable to a bank, collateralized by substantially all
assets, payable in monthly installments of $50,243, including interest until
May 31, 1995 when all remaining principal and interest is due and payable. In
connection with this senior note payable, warrants were issued to purchase up
to 39,161 shares of the Company's common stock at $36.00 per share, expiring
June 1995; the exercisable warrants are being reduced pro rata based on
payments on the outstanding loan balance 1,322 1,622
10 percent subordinated, convertible debentures, unsecured, interest payable
semiannually until January 1998 when all remaining principal and interest is
due and payable, convertible into common shares at $11.95 per share
Subsequent to year-end, the subordinated convertible debentures were amended
to senior notes, unsecured, subordinated, no conversion rights, with interest
payable quarterly. In connection with the amendment, detachable warrants were
issued to purchase up to 167,400 shares of the Company's commons stock at
$6.50 per share, expiring February 2000 2,000 2,000
-9-
38
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
4. NOTES PAYABLE AND LONG-TERM DEBT (CONTINUED)
1994 1993
(In thousands)
10.5 percent subordinated, convertible debentures, unsecured, interest payable
quarterly until February 1999 when all remaining principal and interest is
due and payable, convertible into common shares at $23.00 per share
Subsequent to year-end, the subordinated convertible debentures were amended
to senior notes, unsecured, subordinated, with no conversion rights. In
connection with the amendment, detachable warrants were issued to purchase up
to 54,696 shares of the Company's common stock at $6.50 per share, expiring
February 2000 $1,258 $1,258
7.5 percent subordinated, convertible debentures to a related parties,
unsecured, interest payable quarterly until January 1995, when all remaining
principal and interest is due and payable, convertible into common shares at
$.75 per share 150 150
7 percent subordinated, convertible debentures to a related parties, unsecured,
interest payable quarterly until March 1996 when all remaining principal and
interest is due and payable, convertible into common shares at rates ranging
from $.01 share to $1 per share 150 150
10.5 percent subordinated, convertible debentures to a related parties,
unsecured, interest payable quarterly until February 1999 when all remaining
principal and interest is due and payable, convertible into common shares at
$23.00 per share. Subsequent to year-end, the subordinated convertible
debentures were amended to senior notes, unsecured, subordinated, with no
conversion rights. In connection with the amendment, detachable warrants were
issued to purchase up to 16,609 shares of the Company's common stock at $6.50
per share, expiring February 2000 382 382
-10-
39
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
4. NOTES PAYABLE AND LONG-TERM DEBT (CONTINUED)
1994 1993
(In thousands)
7 percent promissory note to a vendor, paid in full during 1994 $ -- $ 296
8.75 percent note payable to a financing company collateralized by equipment,
payable in monthly installments of $5,576, including interest, until February
1998 when all remaining principal and interest is due and payable 193 241
Other 4 6
------- -------
12,307 15,033
Less current portion 1,529 12,900
------- -------
$10,778 $ 2,133
======= =======
Maturities of notes payable and long-term debt for the five years succeeding
September 30, 1994 are $1,529,000 in 1995, $200,000 in 1996, $6,896,000 in 1997,
$2,048,000 in 1998, and $1,634,000 in 1999. Interest payments were approximately
$1,490,000 and $1,597,000 for the years ended September 30, 1994 and 1993,
respectively.
During 1994, the Company converted $1,407,000 of vendor payables to short-term
promissory notes in noncash transactions. The promissory notes were paid in full
during the fiscal year ended September 30, 1994.
The Company's $9,500,000 line of credit, its 10.5 percent senior note payable
with an outstanding balance at September 30, 1994 of $1,322,000, and its 10
percent subordinated, convertible debentures contain convenants which place
various restrictions on financial ratios, levels of indebtedness and capital
expenditures, among other things.
5. LEASES
The Company leases equipment under capital leases. The Company also leases
certain manufacturing, warehouse and office facilities and computer hardware and
software under noncancelable operating leases that expire in various years
through April 1999.
-11-
40
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
5. LEASES (CONTINUED)
Property and equipment includes the following amounts for leases that have been
capitalized at September 30:
1994 1993
------- -------
(In thousands)
Equipment $ 625 $ 2,249
Less accumulated amortization (478) (1,818)
------- -------
$ 147 $ 431
======= =======
Amortization of leased assets is included in depreciation and amortization
expense.
Future minimum payments under capital leases and noncancelable operating leases
with initial terms of one year or more consisted of the following at September
30, 1994:
CAPITAL OPERATING
LEASES LEASES
------ ------
(In thousands)
1995 $ 74 $1,319
1996 25 1,230
1997 24 1,238
1998 -- 601
1999 -- 157
Thereafter -- 111
------ ------
Total minimum lease payments 123 $4,656
======
Amounts representing interest 14
------
Present value of net minimum lease payments (including
current portion of $58,000) $ 109
======
Total rental expense for all operating leases was approximately $995,000 and
$740,000 for the years ended September 30, 1994 and 1993, respectively.
-12-
41
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
6. INCOME TAXES
Effective October 1, 1992, the Company changed its method of accounting for
income taxes from the deferred method too the liability method required by FASB
Statement No. 109, "Accounting for Income Taxes" (FAS 109). As permitted under
the new rules, prior years' financial statements have not been restated. The
cumulative effect of adopting FAS 109 as of October 1, 1992 was to increase the
net loss by $827,000.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax assets as of September 30, 1994 are as follows:
1994 1993
------- -------
(In thousands)
Deferred tax assets:
Inventory allowances $ 556 $ 736
Receivables allowances 258 214
Book over tax depreciation 170 124
Accrued liabilities and other 636 485
Research and development 208 219
Alternative minimum tax credit carryforward 244 315
Net operating loss carryforwards - state 198 300
------- -------
Total deferred tax assets 2,270 2,393
Less valuation allowance for deferred tax assets -- (2,393)
Less current portion of deferred tax assets (2,100) --
------- -------
Deferred tax assets long-term $ 170 $ --
======= =======
The valuation allowance decreased by $2,393,000 during 1994 based upon
management's assessment that a valuation allowance was no longer required with
the recent improvements in the Company's financial results. During 1993, the
valuation allowance was increased by $1,330,000 from the amount existing at
adoption based on that year's losses.
-13-
42
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
6. INCOME TAXES (CONTINUED)
Significant components of the federal and state income tax expense (benefit)
are:
1994 1993
------- -------
(In thousands)
Current:
Federal expense $ 590 $ 50
State expense 110 40
------- -------
Total current 700 90
Deferred:
Federal (benefit) (2,135) --
State (benefit) (135) --
------- -------
Total deferred (benefit) (2,270) --
------- -------
Deferred tax assets long-term $(1,570) $ 90
======= =======
The Company's effective tax rate differs from the statutory rates primarily due
to the noninclusion of foreign income and (losses) of approximately $223,000,
net, in 1994 and $(159,000), net, in 1993, utilization of net operating loss
carryforwards, as well as the deferred tax asset valuation allowance changes
during 1994 and 1993.
At September 30, 1994, the Company had a net operating loss carryforward of
approximately $3,950,000 for state income tax purposes which expires during 1996
through 1998.
7. COMMON STOCK GRANTS AND OPTIONS
In May 1990, the Board of Directors granted certain officers and employees
common stock grants as compensation and additional incentive to provide
continued services to the Company. The stock was granted at its fair market
value as determined by management at the date of the grant. If the officers' or
employees' employment with the Company is terminated during the four year
incentive period for any reason, the officer or employee shall be required to
forfeit all unvested stock issued under the stock grant program. The Company
charged to expense, under the stock grant program, $24,000 and $29,000 as
compensation in 1994 and 1993, respectively.
The Board of Directors of the Company granted a certain consulting firm, which
is providing executive and other consulting services to the Company, options to
purchase 50,000 shares of its authorized but unissued common stock at a price of
$23 per share (amended to $6.50 per share subsequent to year-end), protected
against dilution, as defined, and expiring in August 1999. The price per share
exceeded the fair market value at the date of the grant. These stock options
shall be contingent upon the Company's stock being publicly traded, or the
Company being
-14-
43
Rockford Corporation
Notes to Consolidated Financial Statements (continued)
7. COMMON STOCK GRANTS AND OPTIONS (CONTINUED)
merged into or acquired by a private or publicly owned concern, and if such
event occurs, the stock options will vest 100 percent and shall be exercisable
only within 90 days after such event. The stock options shall vest 25 percent on
August 1, 1992, and 25 percent each year thereafter provided that the consulting
firm shall be, each vesting date, still performing the services required of
them.
Subsequent to year-end, the Board authorized the implementation of an incentive
stock option plan for certain employees. Under the plan, options to purchase
common stock of the Company will be granted to certain employees at the fair
market value of the underlying common stock. Up to 250,000 shares may be offered
under this plan.
8. LIFE INSURANCE PROCEEDS
During 1993, the Company received proceeds of approximately $1,000,000 from a
claim filed under a key man life insurance policy due to the death of a member
of the Board of Directors. The proceeds are recorded in other income in the 1993
financial statements.
9. CONTINGENCIES
The Company is a party to legal proceedings which arise out of the ordinary
course of business. Based upon advice from outside legal counsel, management is
of the opinion that these matters will have no material effect on the Company's
consolidated financial position.
10. BENEFIT PLAN
During 1990, the Company's Board of Directors elected to establish the Rockford
Corporation 401(k) Retirement Savings Plan (Plan) covering substantially all
employees who have completed six consecutive months of service without regard to
hours of service. Under the terms of the Plan, employees may make voluntary
contributions, subject to Internal Revenue Service limitations. The company will
match employee contributions up to three percent of the employee's annual
compensation. Additional contributions to the Plan can be made at the discretion
of the Board of Directors. Contributions to the Plan during the years ended
September 30, 1994 and 1993 were approximately $140,000 and $71,000,
respectively.
-15-
44
OTHER FINANCIAL INFORMATION
45
[ERNST & YOUNG LLP letterhead]
Report of Independent Auditors on
Other Financial Information
The Board of Directors and Stockholders
Rockford Corporation
Our audit was conducted for the purpose of forming an opinion on the basic
financial statements taken as a whole. The following financial information,
included on pages 17 through 19, is presented for purposes of additional
analysis and is not a required part of the basic financial statements. Such
information has been subjected to the auditing procedures applied in our audit
of the basic financial statements and, in our opinion, is fairly stated in all
material respects in relation to the basic financial statements taken as a
whole.
/s/ Ernst & Young LLP
November 23, 1994
-16-
46
Rockford Corporation
Consolidating Balance Sheet
September 30, 1994
(In thousands)
Consolidation Rockford Rockford Rockford
Consolidated Adjustments Corporation Germany Japan
------------ ----------- ----------- ------- -----
ASSETS
Current assets:
Cash $ 120 $ -- $ 60 $ 34 $ 26
Accounts receivable 11,254 (1,844) 12,604 121 373
Less allowance for doubtful accounts (715) -- (696) (19) --
-------- -------- -------- -------- --------
Net accounts receivable 10,539 (1,844) 11,908 102 373
Inventories 7,287 (109) 7,105 -- 291
Less allowances (1,402) -- (1,402) -- --
-------- -------- -------- -------- --------
Net inventories 5,885 (109) 5,703 -- 291
Prepaid expenses and other 634 -- 522 32 80
Notes receivable -- (564) 564 -- --
Deferred income taxes 2,100 -- 2,100 -- --
-------- -------- -------- -------- --------
Total current assets 19,278 (2,517) 20,857 168 770
Property and equipment, net 3,015 -- 2,895 38 82
Deferred income taxes 170 -- 170 -- --
Other assets, net 282 (175) 377 50 30
-------- -------- -------- -------- --------
Total assets $ 22,745 $ (2,692) $ 24,299 $ 256 $ 882
======== ======== ======== ======== ========
-17-
47
Rockford Corporation
Consolidating Balance Sheet -- Continued
September 30, 1994
(In thousands)
Consolidation Rockford Rockford Rockford
Consolidated Adjustments Corporation Germany Japan
------------ ----------- ----------- ------- -----
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Bank overdraft $ 300 $ -- $ 300 $ -- $ --
Accounts payable 5,264 (1,844) 5,185 1,060 863
Current portion of notes payable, long-term debt, and --
capital lease obligations 1,587 -- 1,587 --
Accrued payroll, bonus, commissions, and other 2,750 -- 2,749 (24) 25
Accrued warranty 1,570 -- 1,570 -- --
Income taxes payable 400 -- 400 -- --
-------- -------- -------- -------- --------
Total current liabilities 11,871 (1,844) 11,791 1,036 888
Notes payable and long-term debt, less current portion 10,778 (564) 10,778 454 110
Capital lease obligations, less current portion 51 -- 51 -- --
-------- -------- -------- -------- --------
10,829 (564) 10,829 454 110
Stockholders' equity (deficit):
Common stock 6 (216) 6 117 99
Additional paid-in capital 765 -- 765 -- --
Deferred stock grants -- -- -- -- --
Retained earnings (accumulated deficit) (531) (68) 980 (1,047) (324)
Currency translation adjustments (195) -- -- (304) 109
-------- -------- -------- -------- --------
Total stockholders' equity (deficit) 45 (284) 1,679 (1,234) (116)
-------- -------- -------- -------- --------
Total liabilities and stockholders' equity (deficit) $ 22,745 $ (2,692) $ 24,299 $ 256 $ 882
======== ======== ======== ======== ========
-18-
